COMPETITION LAW ASSIGNMENT:
Critically examine and analyze the provisions relating to competition law enforcement authorities under the completion act 2010.
Look at the weaknesses strengths of the competition law enforcement authorities and make suggestions.
HISTORY
Before the introduction of the new Competition Act, the Kenyan investment market was unfavorable for competition, as new investors needed financial and political muscle to gain commercial mileage hence companies had to align themselves with political strong men or merge with them, against perceived competitors inorder to carve themselves a niche. This was especially the case for new businesses wishing to operate in sectors with large consumer bases such as telecommunications, information systems, financial services and energy.
The objective of the Act is to modernize competition regulation inorder to support the local market economy and consequently deepen consumers’ benefits.
The Competition Authority is mandated to promote and safeguard competition in the national economy and to protect consumers from unfair market conduct. The Act applies to all persons including the Government, State Corporation and devolved government in so far as they engage in trade.
The mandate is comprehensive and clear as Section 9 defines the tasks as follows:
To promote and enforce compliance with the Act;
To receive and investigate complaints from legal or natural persons and consumer bodies;
To promote public knowledge, awareness and understanding of the obligations, rights and remedies under the Act and the duties, functions and activities of the Authority;
To promote the creation of consumer bodies and the establishment of good and proper standards and rules to be followed by such bodies in protecting competition and consumer welfare;
To recognize consumer bodies duly registered under the appropriate national laws as the proper bodies, in their areas of operation, to represent consumers before the Authority;
To make available to consumers information and guidelines relating to the obligations of persons under the Act and the rights and remedies available to consumers under the Act;
To carry out inquiries, studies and research into matters relating to competition and the protection of the interests of consumers;
To study government policies, procedures and programmes, legislation and proposals for legislation so as to assess their effects on competition and consumer welfare and publicise the results of such studies;
To investigate impediments to competition, including entry into and exitfrom markets, in the economy as a whole or in particular sectors andpublicise the results of such investigations;
To investigate policies, procedures and programmes of regulatoryauthorities so as to assess their effects on competition and consumerwelfare and publicise the results of such studies;
To participate in deliberations and proceedings of government, government commissions, regulatory authorities and other bodies inrelation to competition and consumer welfare;
To make representations to government, government commissions,regulatory authorities and other bodies on matters relating tocompetition and consumer welfare;
To liaise with regulatory bodies and other public bodies in all matters relating to competition and consumer welfare;
To advise the government on matters relating to competition and consumer welfare.
The Act requires that five members of the authority who are to be appointed by the Minister, to be vetted and approved by Parliament. This mitigates corruption and abuse of office, and allows the public to participate in the process.
Section 10(f) states that members of the authority must be persons who are experienced in competition and consumer welfare matters. The Authority has adequate human resource to allow it to perform its functions. It may also engage consultants and experts to assist it to perform its functions. The employees and consultants are required to be hired competitively. This implies that the Authority is able to tap the most qualified candidates for the positions.
The Competition Act is supreme: If there is any conflict between its provisions and provisions of other laws with regard to matters concerning competition. For instance, the Price Control (Essential Goods) Act provides for the regulation of the prices of essential commodities in order to secure their availability at reasonable prices and for connected purposes. Although the Price Control Act promotes anti- competitive practice, the Competition Provisions allow cooperation and exchange of information to avoid conflict in the eventual directive, while promoting consumers’ welfare.
The Act in section 7 creates the Authority, an autonomous public institution, “The Authority shall be independent and shall perform its functions and exercise its powers independently and impartially without fear or favour.” This provision ensures that the authority is not compromised by political forces and the quality of the decisions they make are just and fair. Structure of the Competition Authority:

The Finance minister is responsible for policy; a board, appointed by the minister, vetted and approved by Parliament is responsible for management, while the Director-general, appointed by the board and approved by Parliament, is responsible for regulation.
This is a modern form of regulatory institutions arrangement which ensures separation of responsibilities and hence enhancement of accountability.
An appellant body, the Competition Tribunal, is also established with the mandate of adjudicating appeals resulting from determination of the authority. The authority has the primary jurisdiction in regard to competition and consumer welfare matters in the economy and is the government’s advisor on competition matters.
However there will be a conflict of jurisdiction: The Common Market for Eastern and Southern Africa (Comesa) Regulations or the Competition Act? Need for harmonization of the Competition Act and Regional laws on trade.
Trade liberalisation within Comesa, and the elimination of tariff and non-tariff barriers, has enhanced competition in the region. In order to ensure fair competition and transparency among economic operators, Comesa has adopted a regional competition policy namely Comesa Competition Regulations.
By promoting fair competition, the regional competition policy will help to boost trade and investment and maximise consumer welfare in the region. Since the spirit of both the regional and national laws is the same, and the objectives are similar, the regulations tend to complement each other.
However, in the event of conflict local laws should prevail. This is informed by the implied conferment of such powers by Comesa regulations under the Obligations of Member States section.
Pursuant to Article 5(2) (b) of the treaty, member states shall take appropriate measures to ensure fulfilment of the obligations arising out of these regulations or resulting from action taken by the commission under these regulations.
They shall facilitate the achievement of the objects of the common market. Member states shall abstain from taking any measure which could jeopardise the attainment of the objectives of the regulations.
Appropriate measures will include enactment of appropriate laws to enforce the objectives of the Comesa regulations
The understanding of this is that the laws will always reflect public policy and serve the general good. It is also understood that local laws will never be unconstitutional.
Furthermore, when matters of jurisdiction arise, issues of sovereignty of a country also arise. The 19 Comesa member states must also understand that those who have developed elaborate competition laws should be left to fulfil their mandate under Article 5.
Article 3(2) of Comesa Competition Regulations, however, suggests that the regional competition body has primary jurisdiction over an industry whose operations transcend national borders with respect to anti-competitive trade practices and mergers and acquisitions.
This provision makes sense since the matter is beyond local laws and hence attracts regional regulations for purposes of uniformity.
Finally, the current regulatory regime is within the threshold of modern competition legislation in the world. However, competition regulation requires that the regulated develop a culture of competition.
Competition does not mean discarding or shredding the competitor. Markets can easily be won through innovation, impeccable customer care, reducing production costs and consequently prices, and improving on quality of goods or services.
In addition, Kenyan consumers should understand that their rights are protected by the Constitution and they must therefore be vigilant.
The Competition Authority is established in Section 7 as a body corporate with perpetual succession and a common seal. The Authority is therefore a separate person from the members and the members are not liable for its debts.
The Authority is capable of suing and to be sued: the Authority can take action to enforce its legal rights, and it may also be sued for breach of its legal duties. Airtel brought an action against the Competition Authority of Kenya over an allegation of being lenient on Safaricom who according to Airtel was generally restricting the competition through foul play and excluding Airtel products from their retail outlets country wide market to unhealthy competition and was abusing its dominance in the marketwas infringing the market through MPESA money transfer. Daily Nation Tuesday March 11, 2014.
The Competition Authority of Kenya (the Authority) develops an annual report pursuant to Section 83 of the Competition Act, and provides information of the activities it has undertaken and its overall performance annually. It highlights the activities and progress of the authority towards achieving its mandate, challenges encountered and the deployed mitigating factors. This enables awareness among the public.
WEAKNESSES OF THE ENFORCEMENT AUTHORITY ESTABLISHED UNDER SECTION 7 OF THE COMPETITION ACT 2010
1. Lack of direct prosecutorial powers
The competition Authority established under the above section has neither prosecutorial powers nor criminal jurisdiction. This makes it extremely hard for the authority to operationalize. Further the same section is absolutely silent on the role of the Director of Public Prosecution who is vested with the prosecutorial powers. Under Article 157 of the Constitution, there is established the office of the Director of Public Prosecution. The Director of Public Prosecution may institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed. The DPP has criminal jurisdiction on such issues of competition under the market economy in Kenya, therefore where his role is not prescribed; he becomes one without any power unlike other jurisdiction. For instance, in Europe price fixing is an offence and there is a commission mandated to investigate such offence. Where one is found guilty of such an offence, he/she risks being prosecuted or fined by the authority. In Polyprophylene, the commission found price fixing and market sharing and infringement of Article 81 (1) of the EU. The parties were fined.
In order to make sure that Authority discharges its functions well, there is need for them to be accorded express, prosecutorial powers. The Authority can be amendment to also include the direct participation of the DPP to have criminal jurisdiction on such offenses in the market economy.

2 Impartial aspect of the Competition Authority.
The Act establishes an impartial regulatory authority with operational independence that is not clearly defined. The aspect of independence is something positive but whenever it is established, it must be clearly defined to determine the extent of the authority or any other body. Without that kind of description, the Authority is likely to go beyond its role due to lack of proper definition of the role.
The independence of the Authority must be defined in order to avoid the aspect of going beyond what the Authority is mandated to do.
Implementation
The Act is modeled on the competition regulation applicable in the European Union and in this respect attempts to bridge the gap between Kenya’s various industry regulators by providing the Authority with an overarching jurisdiction over various existing bodies charged with consumer protection. The mechanisms in place to implement the enforcement authority of the Authority are insufficient. Very few cases have been tried ever since the Act was enacted. The EU has proper mechanisms to enforce their market economy unlike Kenya.
There is need to emulate what we can do and offer to the consumers rather than just copying what we cannot offer as a matter of fact.
Interpretation Vacuum
There is no Competition Policy framework that guides the interpretation of the Act. Interpretation of the Act is vital. Without it, it will be hard to breathe the Act into life. There is therefore a need to come up with such a piece of legislation to give the Act life in its applicability.
In order to cure this problem, there is need to enact a specific interpretation policy that will aid in interpreting the Act.